Precedential National Interest Waiver Decision: Matter of Dhanasar

December 29th, 2016

In Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the Administrative Appeals Office (AAO) created a precedential new test for a national interest waiver in sustaining the appeal and approving a national interest waiver petition under INA §203(b)(2)(B)(i).

USCIS may grant a national interest waiver of the labor certification, which allows for self-petitioning by the foreign national, if the petitioner demonstrates that the alien is a member of the profession holding an advanced degree or equivalent (or who because of exceptional ability in the arts, sciences or business) and will substantially contribute to the US’s economy, culture, educational interests or welfare. The foreign national’s services must be in the sciences, arts, professions or business.

In the landmark case of Matter of New York State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), USCIS’s predecessor Immigration and Naturalization Service established a framework for evaluating national interest waiver petitions. This case required that (1) the employment is of substantial intrinsic merit; (2) any proposed benefit be national in scope; and (3) the national interest would be adversely affected if a labor certification were required for the foreign national. Id. at 27.

In Matter of Dhanasar, the AAO held that this analysis caused much confusion and had a tendency to lead to unnecessary subject evaluation. Id at 887. It held that it was vacating NYSDOT and adopting a new and clearer framework for adjudicating national interest waiver petitions, which is stated as follows:

“Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:8 (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.” Id at 889.

Regarding the first prong of showing substantial merit and national importance, the AAO noted that the endeavor’s merit may be shown in the fields of business, entrepreneurialism, science, technology, health, culture or education. Id. It held that the petitioner is not required to show that the endeavor has the potential to create a substantial impact, since it acknowledged that pure science and research may not translate into economic benefits for the US. Id.

Regarding whether the proposed endeavor has national significance the AAO focused on potential prospective impact. Id. It clearly stated that this impact is not to be evaluated solely geographically but on a broader scale. Id.

Regarding the second prong, in determining whether the foreign national is well positioned to advance the proposed endeavor, the following factors may include, but are not limited to: the individual’s education, skills, knowledge, record of success in similar areas, a plan for the future, progress made in achieving the proposed endeavor and the interest of other related parties, such as users, customers or investors. Id at 890. The AAO noted that the petitioners are not required to demonstrate that they are more likely than not to succeed in their fields. Id.

Regarding the third prong, the AAO listed the following factors that may be considered in showing that on balance it benefits the US to waive the requirements of a job offer and labor certification: in light of the foreign national’s background, whether it would be impractical for the foreign national to obtain a job offer or labor certification on the foreign national’s behalf; whether it would still benefit the US even if other qualified US workers are available; and whether the US’s interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. Id at 890-891.

It should also be emphasized that the AAO eliminated the requirement of comparing the foreign national to other US workers in the same field and stressed that the new test was more flexible so that more foreign nationals may satisfy it. It held:

“We note that this new prong, unlike the third prong of NYSDOT, does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field. As stated previously, NYSDOT’s third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. This more flexible test, which can be met in a range of ways as described above, is meant to apply to a greater variety of individuals.” Id. at 891.

In the underlying case of Matter of Dhanasar, the AAO noted that the petitioner holds two master’s degrees and a Ph.D. in fields related to his area of developing air and space propulsion systems and is serving as a postdoctoral research associate; developed novel models; and provided evidence of his publications and other published materials citing to his work, evidence of his membership in professional associations, documentation regarding his teaching activities and letters of recommendation from experts in his field. In finding that the foreign national petition satisfied all prongs of the new test, it noted his funding from national science agencies.

The precedential national interest waiver case of Matter of Dhanasar provides a more flexible analysis that will benefit petitioners, especially doing away with the comparison requirement and focusing instead on the petitioner’s particular background. However, the factors to be evaluated regarding the last prong requiring that on balance it benefits the US to waive the requirements of a job offer and labor certification still leaves much room for subjectivity, especially in determining when it is considered “impractical” for the foreign national to obtain a job offer or labor certification and whether the US’s interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. That is where excellent advocacy skills will continue to play a critical role in obtaining an approved national interest waiver petition.